Jones v. School Dist. Phila. ( 1999 )


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  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                                  for the Third Circuit
    
    
    12-10-1999
    
    Jones v. School Dist. Phila.
    Precedential or Non-Precedential:
    
    Docket 98-2154
    
    
    
    
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    Filed December 10, 1999
    
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    
    No. 98-2154
    
    CHARLES S. JONES,
    
           Appellant
    
    v.
    
    SCHOOL DISTRICT OF PHILADELPHIA
    
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civ. No. 97-2653)
    District Judge: Honorable J. Curtis Joyner
    
    Argued November 4, 1999
    
    BEFORE: BECKER, Chief Judge, and GREENBERG
    and CUDAHY,* Circuit Judges
    
    (Filed: December 10, 1999)
    
           Reginald C. Allen (argued)
           Rosemarie Rhodes
           Harper & Paul
           140 W. Maplewood Avenue
           Philadelphia, PA 19144
    
            Attorneys for Appellant
    
    
    
    _________________________________________________________________
    * Honorable Richard D. Cudahy, Senior Judge of the United States Court
    of Appeals for the Seventh Circuit, sitting by designation.
           Andrew M. Rosen (argued)
           School District of Philadelphia
           Office of General Counsel
           2130 Arch Street, 5th Floor
           Philadelphia, PA 19103
    
            Attorney for Appellee
    
    OPINION OF THE COURT
    
    GREENBERG, Circuit Judge.
    
    I. INTRODUCTION
    
    This matter is before this court on an appeal from an
    order for summary judgment entered in favor of the
    employer in this employment discrimination action. The
    appellant Charles Jones instituted this case against his
    former employer, the School District of Philadelphia,
    pursuant to Title VII of the Civil Rights Act of 1964 ("Title
    VII"), 42 U.S.C. SS 2000e et seq., the Pennsylvania Human
    Relations Act ("PHRA"), Pa. Stat. Ann. tit. 43, SS 951 et seq.,
    (West 1991), and 42 U.S.C. S 1981. The school district
    employed Jones as a teacher from 1985 to 1995, certified
    to teach physics, chemistry, biology and other subjects.
    Jones resigned from the school district effective June 30,
    1995. According to Jones, he resigned because school
    district personnel informed him that he would be
    terminated involuntarily unless he did so. Jones, an
    African-American, then filed this lawsuit, alleging race
    discrimination and retaliation by the school district. We set
    forth the background of the matter at some length as the
    case is intensely fact driven.
    
    Jones's first assignment in the school district was in the
    science department at Northeast High School ("NEHS")
    where he taught physical science, chemistry, and physics.
    Jones remained at NEHS until March 1993, when the
    school district transferred him to George Washington High
    School ("GWHS"). In addition to his teaching responsibilities
    at NEHS, Jones served as the boys' varsity soccer coach
    from 1985 to the time of his transfer. Jones applied for the
    
                                    2
    position of girls' soccer coach in January 1993, but NEHS
    chose another teacher for that position.
    
    As early as the first year of Jones's assignment to NEHS,
    Principal Francis Hoban began to receive complaints from
    Jones's students that he was "hostile" in class. Hoban
    testified at his deposition that several students objected to
    the way that Jones "talked down" to his students. In
    addition, students and parents complained to Hoban that
    Jones's grading policy was too strict, leading Hoban to
    indicate to Jones that his grading policy was "unrealistic,"
    and resulted in disproportionately large numbers of
    failures.
    
    Hoban disciplined Jones several times during his
    employment at NEHS because of student and parent
    complaints and other incidents. At his deposition, Hoban
    characterized "formal disciplinary action" against a teacher
    as taking essentially one of two forms: (1) a memorandum
    directed from school administration to the teacher setting
    forth the nature of the teacher's unsatisfactory conduct, or
    (2) an "SEH-204," which is an "anecdotal record" and is
    viewed as a more severe form of reprimand. A teacher could
    receive an SEH-204 reprimand for an unsatisfactory
    classroom evaluation or for other conduct that an
    administrator considered unacceptable. Jones believes that
    for the most part the disciplinary actions taken against him
    were improper or unwarranted, and that his comments
    often were misunderstood. Moreover, he asserts that Hoban
    repeatedly targeted him for harassment because of his race.
    
    The school district's disciplinary actions against Jones
    included several memoranda on a variety of issues, at least
    two SEH-204s based upon unsatisfactory classroom
    evaluations, and several SEH-204s pertaining to other
    unsatisfactory conduct. For example, Hoban issued several
    memoranda to Jones regarding problems students, parents
    and staff encountered in connection with Jones's
    responsibilities as the varsity soccer team coach. In
    addition, Hoban issued memoranda to Jones concerning
    his teaching style and complaints from students and
    parents on this point. Jones also received memoranda from
    administrators regarding his failure to meet with parents of
    students in his class upon request and his failure to attend
    
                                   3
    a parents' conference on November 17, 1992. Finally, Jones
    received a memorandum from NEHS Assistant Principal
    Lowman in January 1993 regarding an incident between
    Jones and NEHS guidance counselor Nick Tancredi in
    which Tancredi alleged that Jones became abusive.
    
    Jones also received a number of SEH-204s during his
    employment at NEHS. The first appears to have been sent
    in 1991, and concerned several complaints of parents and
    teachers regarding his grading policy and allegedly hostile
    attitude towards his students. Jones was issued another
    SEH-204 in January 1992 as a result of a verbal altercation
    between him and Ernest Davis, a school district
    supervisory employee. Davis accused Jones of calling him
    an "ass" and a "horse's ass" in response to a discussion
    between them concerning the safety of Jones's field house
    locker room office.
    
    Hoban gave Jones another SEH-204 in December 1992
    that documented an unsatisfactory classroom evaluation.
    Hoban stated in the record of the observation that Jones
    had little interaction with the students and that his tone of
    voice was "harsh." Hoban also indicated that he observed
    very little instruction, and that Jones's method of lecture
    was inappropriate in a lab subject such as physics. Hoban
    instructed Jones to engage in the following actions: (1) turn
    lesson plans into the department head each week which
    detail course objectives and student lab work; (2) get
    students involved in the program; (3) turn in cut slips for
    students; (4) contact parents of students performing poorly
    in class; and (5) contact parents of students on the student
    roll but not attending class.
    
    Jones received a second unsatisfactory classroom
    evaluation in February 1993, again in the form of an SEH-
    204. By the time of this evaluation, Hoban already had
    informed Jones of his intention to recommend his transfer
    to another school.
    
    The final matter leading to the school district's transfer of
    Jones from NEHS appears to have occurred in or about
    January 1993. Hoban and Assistant Principal Lowman sent
    Jones memoranda directing him to meet with a parent of
    one of Jones's students. Apparently, the student was failing
    
                                    4
    Jones's physics class, and his mother wanted to meet with
    Jones to discuss the situation. When the mother arrived,
    Jones refused to meet with her without union
    representation at the meeting. Thereafter, Hoban directed
    Jones to meet with the student's mother but he again
    refused to do so. According to Jones, on the advice of his
    union representative he refused to meet any parent without
    union representation. Jones explained that he was fearful
    for his safety in view of prior incidents in which a parent
    and a student had threatened him.
    
    As a result of Jones's conduct, Hoban issued him an
    SEH-204, characterizing his failure to meet with the mother
    as insubordinate in the circumstances. Hoban stated that
    the mother attempted to contact Jones on several occasions
    to schedule a meeting, but that Jones never responded to
    her requests or notes. Hoban recommended that Jones be
    suspended and administratively transferred from NEHS as
    a result of the incident. In March 1993, Frank Guido, the
    regional superintendent for the school district, upheld the
    transfer recommendation.
    
    In fact, the school district transferred Jones to GWHS in
    April 1993 on "special assignment" for the remainder of the
    1992-93 school year. During the summer of 1993, the
    administrators required Jones to list five alternatives for his
    placement for the 1993-94 school year. Jones chose GWHS
    in the hope that he could teach physics there.
    
    Sam Karlin, the new science department head for GWHS
    for the 1993-94 school year, was responsible for assigning
    rosters to teachers in his department. Karlin assigned the
    physics roster for the 1993-94 school year to a white
    woman. On the first day of school, Jones learned that he
    was not assigned the physics roster, and he went to see
    Karlin to discuss the issue.
    
    Jones states in his affidavit that he told Karlin that he
    should have received the physics roster because the teacher
    selected was not certified to teach the class. Jones claims
    that Karlin refused to change the assignment of the physics
    roster, and ignored what Jones told him. Thereafter, Jones
    brought the issue to the attention of Assistant Principal
    Alvin Vaughn and Principal Harry Gutelius, but both
    indicated that they would "stand by" Karlin's decision.
    
                                    5
    Sometime during the fall of the 1993-94 school year,
    Karlin received a telephone call from a parent of one of
    Jones's students alleging that Jones threatened to hit his
    students with a baseball bat. Specifically, the parent stated
    that when a student threw a piece of paper at Jones he
    responded in the following manner:
    
           If I find out who threw that paper I'll kick your ass. I'll
           hit you in self defense if I have to. If I have to bring in
           a baseball bat I will. I had a problem in another school
           with a girl there and there was a court case. I have the
           district attorney's number and I won't hesitate to use
           it.
    
    Jones states in his affidavit that he remembers stating only
    that he would defend himself "if necessary," and then
    asked, "do I need to bring in a baseball to protect myself."
    
    Karlin reported the call to Assistant Principal Vaughn,
    who investigated the matter by interviewing students and
    meeting with Jones and his union representative. As a
    result of the investigation, Vaughn issued Jones an SEH-
    204, and recommended to Gutelius that Jones be
    suspended for five days without pay and administratively
    transferred from GWHS.
    
    In addition to the episode involving the threat, Vaughn
    recommended Jones's transfer based upon his continued
    "exercise of poor judgment, and failure to adhere to school
    district policies and procedures." In reaching his
    conclusion, Vaughn relied upon the information he
    gathered during his investigation, various memoranda from
    Karlin to Jones, as well as an SEH-204 dated January 6,
    1993, from Principal Hoban. Gutelius also recommended
    Jones's transfer after considering Vaughn's SEH-204. The
    school district approved Jones's transfer to Edison High-
    Fareira Skills Center ("Edison") in or about the spring of
    1994. Nevertheless, Jones was not transferred immediately
    from GWHS after the incident.
    
    Jones was assigned to Edison, which has a reputation of
    being a difficult school, for the 1994-95 school year. Jones
    states that on the first day of classes, Vice Principal Kinder
    conducted a classroom observation of him. Jones's union
    representative testified that generally speaking,"from the
    
                                   6
    federation's point of view," a classroom observation on the
    first day of school would be unusual and inappropriate
    given the fact that the first day of classes is a hectic time
    for both teachers and students.
    
    In or around the fall of 1994, Jones made a comment to
    his students during class allegedly in response to a
    student's conduct in defacing school desks in Jones's
    presence. Jones states in his affidavit that he used words
    to the effect that the students should not deface the school
    because it was built for the Puerto Rican community.
    Arturo Velazquez, one of Jones's students, indicated that he
    was offended by the remarks. Jones then asked Velazquez
    to remain after class so that they could speak, and at the
    conclusion of class, Jones escorted Velazquez into a vacant
    adjoining room.
    
    The remainder of what occurred during Jones's
    encounter with Velazquez is in dispute. Jones claims that
    almost immediately Velazquez pushed him against afile
    cabinet and grabbed him in a headlock. Jones states that
    he attempted to wrestle Velazquez off his neck and torso,
    and that in doing so, his hand "could" have touched the
    student's face. In contrast, Velazquez told administrators
    that Jones punched him on the left eye and jaw, and threw
    him on the floor. Velazquez stated that he did not initiate
    any physical contact with Jones.
    
    Principal Raul Torres investigated the incident by
    interviewing Jones, Velazquez, and other students in the
    class at the time of Jones's comments about the Puerto
    Rican community. As a result of the investigation, Torres
    determined that Jones punched Velazquez without
    provocation and made inaccurate and racist comments
    which precipitated the event. Torres issued Jones an SEH-
    204 which recommended his dismissal based upon the
    assault, his prior record of using profanity in addressing
    students in the classroom, and his prior use of implied
    threats to harm students. Jones, however, resigned from
    the school district as of June 30, 1995, and thus the school
    district did not directly discharge him.
    
    II. PROCEDURAL HISTORY
    
    After filing administrative complaints with the
    Pennsylvania Human Relations Commission and the Equal
    
                                   7
    Employment Opportunity Commission in 1993 and 1994
    respectively, Jones received a right to sue letter from the
    EEOC dated January 14, 1997. He then filed his complaint
    in the district court on April 17, 1997.
    
    In his complaint, Jones alleged the following claims: (1) a
    disparate treatment race discrimination claim under Title
    VII and the PHRA based upon his administrative transfer
    from NEHS to GWHS; (2) a disparate treatment race
    discrimination claim under Title VII and the PHRA based
    upon the decisions to deny him the physics roster and
    transfer him to Edison; (3) a disparate treatment race
    discrimination claim under 42 U.S.C. S 1981 based on his
    forced resignation; and (4) retaliation claims under Title VII,
    the PHRA, and section 1981 based upon each of those
    events. His complaint also mentions the fact that he was
    denied the position of girls' soccer coach shortly before his
    transfer in April 1993 to GWHS. Nevertheless, it appears
    from his brief that he does not challenge that decision as
    constituting an adverse employment action in and of itself;
    instead, he apparently cites this action as evidence that
    Hoban treated him differently because of his race.
    
    The school district filed a motion for summary judgment
    that the district court granted by memorandum and order.
    See Jones v. School Dist. of Philadelphia, 
    19 F. Supp. 2d 414
    (E.D. Pa. 1998). Jones filed a motion for reconsideration,
    which the district court denied by order entered November
    10, 1998. Jones then filed this timely appeal. While the
    notice of appeal recites that it is from the order of
    November 10, 1998, effectively the appeal is from the
    summary judgment as well and we are deciding the case on
    that basis. See Williams v. Guzzardi, 
    875 F.2d 46
    , 49 (3d
    Cir. 1989).
    
    III. DISCUSSION
    
    On this appeal, we review the district court's grant of
    summary judgment de novo. See Nelson v. Upsala College,
    
    51 F.3d 383
    , 385 (3d Cir. 1995). Summary judgment is
    proper where the pleadings, depositions, answers to
    interrogatories, admissions, and affidavits show there is no
    genuine issue of material fact and that the moving party is
    
                                   8
    entitled to judgment as a matter of law. Fed. R. Civ. P.
    56(c). In deciding the motion, we view the record in the
    light most favorable to Jones and resolve all reasonable
    inferences in his favor. See Deane v. Pocono Med. Ctr., 
    142 F.3d 138
    , 142 n.3 (3d Cir. 1998) (en banc). We do not
    distinguish between the claims under federal and
    Pennsylvania law in our disposition of the case as we agree
    with Jones's contention that the standards are the same for
    purposes of determining the summary judgment motion.
    See Kelly v. Drexel Univ., 
    94 F.3d 102
    , 105 (3d Cir. 1996).
    
    While Jones's brief is complex, we discern that his
    primary contentions on appeal are: (1) the district court
    erroneously concluded that his only claim was a claim of
    constructive discharge, thereby misapplying the elements of
    a prima facie case under Title VII and the PHRA; (2) the
    district court erred in resolving factual issues in the school
    district's favor in violation of the standard applied at
    summary judgment proceedings; (3) the district court
    improperly discounted Jones's direct evidence of Hoban's
    discriminatory animus, as well as evidence that showed
    that he systematically mistreated Jones during his
    employment at NEHS; (4) the district court ignored the
    inference of discrimination which arises from Jones's
    evidence that similarly situated white teachers were treated
    more favorably than Jones; (5) the district court
    erroneously applied the test for determining whether Jones
    was constructively discharged; (6) the district court
    improperly dismissed Jones's retaliation claim because it
    found that the relevant decisionmakers had no knowledge
    of his prior EEO activity and determined that there was
    insufficient evidence of retaliatory motive to survive a
    motion for summary judgment. Jones asks us to reverse
    the district court's disposition of the matter and remand
    the case for trial.
    
    A. Disparate treatment claims under Title VII, section 1981,
           and the PHRA
    
    The parties do not dispute that Jones's disparate
    treatment race discrimination claims under Title VII,
    section 1981, and the PHRA require application of the
    familiar burden-shifting framework the Supreme Court
    articulated in McDonnell Douglas Corp. v. Green , 
    411 U.S. 9
    792, 802, 
    93 S. Ct. 1817
    , 1824 (1973). While Jones's brief
    refers to what he considers to be "direct evidence" of
    Hoban's discriminatory intent, it does not appear that he is
    attempting to proceed under a mixed motive theory and, in
    any event, such an analysis would not be appropriate in
    this case. Briefly summarized, the McDonnell Douglas
    analysis proceeds in three stages. First, the plaintiff must
    establish a prima facie case of discrimination. If the
    plaintiff succeeds in establishing a prima facie case, the
    burden shifts to the defendant "to articulate some
    legitimate, nondiscriminatory reason for the employee's
    rejection." Id. Finally, should the defendant carry this
    burden, the plaintiff then must have an opportunity to
    prove by a preponderance of the evidence that the
    legitimate reasons offered by the defendant were not its
    true reasons, but were a pretext for discrimination. See
    Texas Dep't of Community Affairs v. Burdine, 
    450 U.S. 248
    ,
    252-53, 
    101 S. Ct. 1089
    , 1093 (1981) (citations omitted).
    While the burden of production may shift, "[t]he ultimate
    burden of persuading the trier of fact that the defendant
    intentionally discriminated against the plaintiff remains at
    all times with the plaintiff." Id. Our experience is that most
    cases turn on the third stage, i.e., can the plaintiff establish
    pretext.
    
    The parties raise several issues pertaining to the proper
    analysis of Jones's prima facie case of discrimination, as
    well as the sufficiency of his evidence of pretext. The
    district court dismissed Jones's disparate treatment claims
    on two separate bases: (1) he failed to satisfy the third
    element of his prima facie case; and (2) there was
    insufficient evidence calling into question the legitimacy of
    the school district's proffered reasons for its adverse
    employment decisions.
    
    1. Prima facie case analysis
    
    Citing our decisions in Sheridan v. E.I. DuPont de
    Nemours and Co., 
    100 F.3d 1061
     (3d Cir. 1996) (en banc),
    and Waldron v. S.L. Industries, Inc., 
    56 F.3d 491
     (3d Cir.
    1995), the district court stated that a prima facie case is
    established when a plaintiff shows the following: (1) "that
    he is a member of a protected class"; (2) that he"is
    qualified for the position"; (3) that he "was either not hired
    
                                   10
    or fired from that position"; (4) "under circumstances that
    give rise to an inference of unlawful discrimination such as
    might occur when the position is filled by a person not of
    the protected class." Jones, 19 F. Supp.2d at 418
    (emphasis added). The district court stated that elements
    one, two and four arguably were satisfied, but that element
    three was not because the record reflected that Jones
    resigned and thus was not fired. Id. at 418-19. From that
    conclusion, the district court stated that it was required to
    "determine whether or not [Jones's] resignation amounted
    to a constructive discharge," and proceeded to an analysis
    of that point, holding that it did not. Id. at 419-20 (internal
    quotation marks omitted).
    
    The court then went on to hold that "even assuming
    arguendo, that [Jones] has made out a prima facie case, he
    has produced no evidence to rebut or show that the
    reasons articulated by the School District for his
    termination are a pretext for discrimination." Id. at 420.
    Consequently, the court determined that on this ground as
    well as Jones's failure to make a prima facie case, the
    school district was entitled to summary judgment.
    
    Jones asserts that the district court's analysis
    oversimplified the matter, as the court did not recognize
    that his complaint asserted claims against the school
    district based on adverse employment decisions during his
    employment rather than merely on his termination. Jones
    contends that these claims are distinct from his claim of
    constructive discharge in 1995.
    
    We agree with Jones's position on this point, as the
    complaint clearly delineated the factual basis for his Title
    VII and PHRA claims, and a review of that pleading
    confirms that he did not predicate his claims solely on the
    alleged constructive discharge. Indeed, Jones pleaded the
    constructive discharge claim only under 42 U.S.C.S 1981.
    In fact, Jones's complaint challenged not only the
    purported constructive discharge, but also the transfers
    and the denial of the assignment to him of the physics
    roster at GWHS.
    
    The district court's error seems to have stemmed from its
    borrowing of language from cases which recited the
    
                                    11
    necessary elements of a prima facie case where the
    challenged employment decision is a termination. See
    Sheridan, 100 F.3d at 1066 n.5 (noting elements which are
    required to establish a prima facie case of "discriminatory
    discharge"); Waldron, 56 F.3d at 494 (same). Rather than
    considering the possibility that the constructive discharge
    claim was but one of Jones's claims arising out of his
    employment relationship with the school district, the court
    turned its attention to the constructive discharge analysis
    because Jones admittedly had not been terminated directly
    so as to satisfy the third element of a prima facie case as
    articulated in Sheridan and Waldron. Compare Sheridan,
    100 F.3d at 1063, 1072-75 (count I of plaintiff 's complaint
    alleged a failure to promote claim under Title VII and count
    III alleged a claim of constructive discharge; court
    considered sufficiency of evidence presented on each claim
    separately).
    
    We often have remarked that the elements of a prima
    facie case depend on the facts of the particular case. See,
    e.g., Pivirotto v. Innovative Sys. Inc., 
    191 F.3d 344
    , 352 (3d
    Cir. 1999); Torre v. Casio, Inc., 
    42 F.3d 825
    , 830 (3d Cir.
    1994). Thus, a prima facie case cannot be established on a
    one-size-fits-all basis. In fact, the relevant question with
    respect to Jones's Title VII and PHRA claims is whether he
    suffered some form of "adverse employment action"
    sufficient to evoke the protection of Title VII and the PHRA.
    See Connors v. Chrysler Fin. Corp., 
    160 F.3d 971
    , 974 (3d
    Cir. 1998) (stating that third element of prima facie case in
    disparate treatment ADEA case is that plaintiff suffered an
    adverse employment action); Deane, 142 F.3d at 142 (same
    under ADA); Simpson v. Kay Jewelers, 
    142 F.3d 639
    , 644
    n.5 (3d Cir. 1998) (same under ADEA); Lawrence v. National
    Westminster Bank, 
    98 F.3d 61
    , 66 (3d Cir. 1996) (same).
    Obviously, something less than a discharge could be an
    adverse employment action.
    
    We have held that employment decisions such as
    transfers and demotions may suffice to establish the third
    element of a plaintiff 's prima facie case. See, e.g., Torre, 42
    F.3d at 831 n.7 (recognizing that a job transfer, even
    without loss of pay or benefits, may, in some
    circumstances, constitute an adverse job action); see also
    
                                   12
    McGrenaghan v. St. Denis Sch., 
    979 F. Supp. 323
    , 326
    (E.D. Pa. 1997) (same). Here, Jones challenges both
    administrative transfers and the denial of the physics
    roster. As a result of the first transfer, he lost his
    opportunity to teach physics, which clearly was the subject
    he sought most to teach. After Jones chose to remain at
    GWHS because of the possibility that he would be awarded
    the physics roster, he learned that he was passed over for
    that position. Instead, the administration assigned Jones to
    teach what he regarded as less desirable science classes.
    
    Moreover, the transfer from GWHS to Edison landed
    Jones in a placement which had a reputation of being a
    "difficult school." Viewing the facts in the light most
    favorable to Jones, they suffice to demonstrate that Jones
    was subjected to sufficient adverse employment actions
    such that his Title VII and PHRA claims should have
    survived the initial stage of the McDonnell Douglas analysis.
    See Torre, 42 F.3d at 831 n.7 (plaintiff 's transfer to "dead-
    end" job was sufficient to support plaintiff 's prima facie
    case); see also DiIenno v. Goodwill Indus., 
    162 F.3d 235
    ,
    236 (3d Cir. 1998) (holding in context of retaliation claim
    that transfer could constitute adverse employment action
    as viewed from plaintiff 's perspective).
    
    Finally, we conclude that the district court erred in
    granting summary judgment to the school district on
    Jones's constructive discharge claim under section 1981 on
    its theory that he failed to establish a prima facie case. In
    Goss v. Exxon Office Systems Co., 
    747 F.2d 885
     (3d Cir.
    1984), we recognized that an involuntary transfer to a less
    desirable position could support a claim of constructive
    discharge, especially where the surrounding circumstances
    indicate a pattern of discriminatory treatment. Id. at 888-
    89. Thus, we affirmed the trial court's findings that the
    plaintiff had been constructively discharged where she
    presented evidence that she was involuntarily transferred
    after her supervisor questioned her ability to combine a
    career with motherhood. At the prima facie case stage of
    the analysis, we merely determine whether a plaintiff has
    presented sufficient evidence so that we should consider a
    defendant's proffered reasons for its decision and, if the
    defendant has presented reasons, the plaintiff 's evidence of
    
                                   13
    pretext. Viewed under that lens and in the light most
    favorable to Jones, he should have withstood summary
    judgment on that aspect of his constructive discharge
    claim, because his involuntary transfer to two schools and
    the second school's failure to assign him the physics roster
    despite his qualifications, was sufficient to establish a
    prima facie case under section 1981.
    
    2. Pretext analysis
    
    We turn now to the second and third steps of the
    McDonnell Douglas tripartite framework. The second stage
    requires the defendant to articulate a legitimate
    nondiscriminatory reason for the adverse employment
    action at issue. Keller v. Orix Credit Alliance, Inc., 
    130 F.3d 1101
    , 1108 (3d Cir. 1997) (en banc). Jones does not appear
    to contest that the school district satisfied its burden of
    production in this regard and plainly it did.
    
    Once the defendant has satisfied its burden of production
    at the second stage of the McDonnell Douglas tripartite
    framework, a court's analysis turns to the third andfinal
    aspect of the inquiry which, as we have indicated, is
    usually the determinative stage of the case. At this point,
    the court focuses on whether there is sufficient evidence
    from which a jury could conclude that the purported
    reasons for defendant's adverse employment actions were in
    actuality a pretext for intentional race discrimination. At
    trial, the plaintiff must convince the finder of fact "both that
    the reason was false, and that discrimination was the real
    reason." St. Mary's Honor Ctr. v. Hicks, 
    509 U.S. 502
    , 515,
    
    113 S. Ct. 2742
    , 2752 (1993) (emphasis in original). The
    factfinder's rejection of the employer's proffered reason
    allows, but does not compel, judgment for the plaintiff.
    Sheridan, 100 F.3d at 1066-67.
    
    On numerous occasions, we have explained the plaintiff 's
    burden at summary judgment on this aspect of the
    McDonnell Douglas tripartite framework. Specifically, in
    Fuentes v. Perskie, 
    32 F.3d 759
     (3d Cir. 1994), and later in
    Sheridan, we stated that a plaintiff may defeat a motion for
    summary judgment (or judgment as a matter of law) by
    pointing "to some evidence, direct or circumstantial, from
    which a factfinder would reasonably either: (1) disbelieve
    
                                   14
    the employer's articulated legitimate reasons; or (2) believe
    that an invidious discriminatory reason was more likely
    than not a motivating or determinative cause of the
    employer's action." Fuentes, 32 F.3d at 764; Sheridan, 100
    F.3d at 1067.
    
    We recently characterized this final aspect of the
    McDonnell Douglas analysis as comprised of two alternatives
    as articulated by Fuentes and Sheridan . See Keller, 130
    F.3d at 1108. In Keller, we explained that to satisfy the first
    prong of the Fuentes/Sheridan standard,
    
           the plaintiff cannot simply show that the employer's
           decision was wrong or mistaken, since the factual
           dispute at issue is whether discriminatory animus
           motivated the employer, not whether the employer is
           wise, shrewd, prudent or competent. Rather, the
           nonmoving plaintiff must demonstrate such
           weaknesses, implausibilities, inconsistencies,
           incoherencies, or contradictions in the employer's
           proffered legitimate reasons for its actions that a
           reasonable factfinder could rationally find them
           unworthy of credence.
    
    Id. at 1108-09. Then we indicated that a plaintiff may
    satisfy this standard by demonstrating, through admissible
    evidence, that the employer's articulated reason was not
    merely wrong, but that it was "so plainly wrong that it
    cannot have been the employer's real reason." Id. at 1109.
    
    Under the Fuentes/Sheridan inquiry, the plaintiff also
    may survive summary judgment by pointing to evidence in
    the record which "allows the fact finder to infer that
    discrimination was more likely than not a motivating or
    determinative cause of the adverse employment action."
    Fuentes, 32 F.3d at 764. In Simpson, we provided the
    following explanation of this prong: "For example, the
    plaintiff may show that the employer has previously
    discriminated against [the plaintiff], that the employer has
    previously discriminated against other persons within the
    plaintiff 's protected class, or that the employer has treated
    more favorably similarly situated persons not within the
    protected class." Simpson, 142 F.3d at 645 (citing Fuentes,
    32 F.3d at 765).
    
                                    15
    The district court in its determination that even if Jones
    had established a prima facie case of discrimination in his
    termination, stated that he "produced no evidence aside
    from his own testimony that the actions directed against
    him by the school district were racially motivated." Jones,
    19 F. Supp.2d at 420. Jones challenges that ruling, arguing
    that the court erred in dismissing his disparate treatment
    claims by ignoring circumstantial evidence favorable to this
    claim and failing to recognize that he raised many factual
    issues that would allow a jury to find that the school
    district's proffered reasons for transferring plaintiff twice
    and denying him the physics roster were unworthy of
    credence.
    
    Jones's brief focuses principally upon his employment at
    NEHS and his transfer from that school. Nevertheless, he
    also addresses the other adverse employment actions he
    has suffered, claiming that each constitutes a violation of
    Title VII and the PHRA. Consequently, we have made a
    complete study of the record of this case to determine
    whether there is sufficient evidence from which a jury could
    conclude that the school district's purported reasons for its
    adverse employment actions were a pretext for
    discrimination. While we do not set forth all of the evidence
    and explain our analysis of it, we have concluded that there
    is insufficient evidence to support the claim of pretext. In
    this regard, we point out that Jones makes numerous
    allegations in his affidavit which he predicates on nothing
    more than his beliefs without having actual knowledge of
    them. In fact, a careful analysis of the record demonstrates
    that many of his allegations simply are not supported.
    Moreover, Jones minimizes the baseball bat matter as
    merely "a minor classroom incident." Br. at 3. We think it
    clear that a school district hardly can tolerate comments
    from a teacher even to disruptive students that he will use
    a baseball bat on them.
    
    Overall, the circumstances of this case which we already
    have described in detail reflect a situation in which the
    employer should have been able to take adverse
    employment actions against the employee without fear of
    being embroiled in an expensive law suit. While Jones may
    quarrel with the school district's conclusions regarding
    
                                   16
    particular controversies, the bona fides of its
    determinations simply cannot be doubted. Thus, though we
    view Jones's claims as broader than the district court
    recognized, we are in complete agreement with its
    conclusion that he presented no evidence from which a jury
    could conclude that the school district's articulated reasons
    for its adverse employment actions were a pretext for
    discrimination. See Jones, 19 F. Supp.2d at 420.
    Consequently, we will affirm the summary judgment
    against Jones on his disparate treatment race
    discrimination claims under Title VII and the PHRA.
    
    As we have indicated, in addition to bringing Title VII and
    PHRA race discrimination claims, Jones has brought a
    claim under 42 U.S.C. S 1981 premised upon his eventual
    decision to resign from his employment with the school
    district. In particular, his complaint states that his
    "involuntary resignation" was the result of the
    discriminatory and retaliatory treatment he experienced at
    Edison, including being threatened with removal for
    allegedly striking a student while another employee in a
    similar incident was not disciplined in any manner. Jones
    alleges that the ultimatum amounted to a constructive
    discharge, and further that the evidence shows that the
    proffered reasons for the ultimatum are unworthy of
    credence.
    
    The school district's proffered legitimate
    nondiscriminatory reason for giving Jones the ultimatum of
    resigning or facing termination was primarily that Jones
    was involved in a physical altercation with one of his
    students in which he struck and injured the student
    without provocation. Edison principal Raul Torres stated
    that he also recommended Jones's discharge based upon
    his "prior record of using profanity in addressing students
    in the classroom as well has having made implied threats
    to use physical harm to students at GWHS."
    
    The school district first maintains that the district court
    properly dismissed the section 1981 claim because the
    Supreme Court in Jett v. Dallas Independent School District,
    
    491 U.S. 701
    , 735, 
    109 S. Ct. 2702
    , 2723 (1989), held that
    the exclusive federal damages remedy against a state actor
    for violation of that section is under 42 U.S.C.S 1983. The
    
                                   17
    school district contends that because Jones brought his
    constructive discharge claim under the wrong statute, the
    district court properly dismissed his claim. This argument
    implicates an issue regarding the amendment of section
    1981 by the Civil Rights Act of 1991, Pub. L. No. 102-166,
    S 101(c), 105 Stat. 1071, 1072 (1991), i.e., did the 1991 act
    overturn the Jett ruling that the exclusive federal damages
    remedy against a state actor for a section 1981 violation is
    under section 1983. See Federation of African Am.
    Contractors v. City of Oakland, 
    96 F.3d 1204
     (9th Cir.
    1996); see also Hopp v. City of Pittsburgh, 
    194 F.3d 434
    ,
    
    1999 WL 825457
    , at *4 (3d Cir. Oct. 14, 1999); see,
    however, Dennis v. County of Fairfax, 
    55 F.3d 151
    , 156 n.1
    (4th Cir. 1995).
    
    The school district next argues that assuming arguendo
    that we would overlook Jones's failure to present the
    section 1981 claim under section 1983, dismissal was
    appropriate nonetheless because the standards governing
    Jones's Title VII and PHRA claims control his constructive
    discharge claim, and there is insufficient evidence
    demonstrating that its proffered reasons for demanding his
    resignation were a pretext for illegal race discrimination.
    Finally, the school district claims that to the extent that
    Jones predicates his section 1981 claim upon a theory of
    racial harassment, his proofs fail to satisfy thefive-part test
    set for in our opinion in Andrews v. City of Philadelphia,
    
    895 F.2d 1469
    , 1482 (3d Cir. 1990).
    
    We find it unnecessary to consider the Jett issue as we
    are satisfied that a review of the evidence proffered in
    connection with Jones's section 1981 claim demonstrates
    that it is insufficient to establish by a preponderance of the
    evidence that the decision to request plaintiff 's resignation
    was motivated by racial bias. Therefore, we will affirm the
    district court's order for summary judgment on this claim
    as well.
    
    B. The retaliation claims under Title VII, section 1981, and
           the PHRA
    
    Finally, we address Jones's retaliation claims. The district
    court granted the school district summary judgment on
    these retaliation claims, finding that there "was absolutely
    
                                   18
    no evidence on the record before us that the [school
    district's] actions against [Jones] were in retaliation for his
    filing of EEO complaints." Jones, 19 F. Supp.2d at 421. The
    district court also concluded that with respect to Jones's
    allegations of retaliation by Principal Hoban, "the record
    reflects that [Jones] made no EEO filings until after Hoban
    recommended, and the school district upheld, his
    recommendation for Jones's administrative transfer." Id.
    (emphasis added). Finally, the district court found that
    Jones "produce[d] no evidence which could in any way be
    construed as showing any knowledge on the part of either
    Principal Gutelius or Principal Torres of [Jones's] previous
    EEO filings." Id. On this appeal, Jones apparently is
    attempting to expand his claims by arguing that the
    retaliation was in part for his opposing racial
    discrimination. The school district contends that this
    expansion is improper.
    
    After a careful review, we are satisfied that the district
    court reached the correct result on the retaliation claims.
    While it is true that the school district took a series of
    adverse employment actions against Jones, it is clear that
    it took the actions in response to Jones's ongoing
    unacceptable conduct rather than because he filed
    complaints under Title VII or the PHRA or opposed racial
    discrimination. Consequently, we will affirm on this point
    without further discussion.
    
    IV. CONCLUSION
    
    For the foregoing reasons, the order for summary
    judgment entered October 9, 1998, and the order denying
    reconsideration entered November 10, 1998, will be
    affirmed.
    
    A True Copy:
    Teste:
    
           Clerk of the United States Court of Appeals
           for the Third Circuit
    
                                   19
    

Document Info

DocketNumber: 98-2154

Filed Date: 12/10/1999

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (24)

McDonnell Douglas Corp. v. Green , 411 U.S. 792 ( 1973 )

Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248 ( 1981 )

Jett v. Dallas Independent School Dist. , 491 U.S. 701 ( 1989 )

36 Fair empl.prac.cas. 344, 35 Empl. Prac. Dec. P 34,768 ... , 747 F.2d 885 ( 1984 )

St. Mary's Honor Center v. Hicks , 509 U.S. 502 ( 1993 )

Charles Williams v. Michael Guzzardi and Chancellor ... , 875 F.2d 46 ( 1989 )

67 Fair empl.prac.cas. (Bna) 568, 66 Empl. Prac. Dec. P 43,... , 42 F.3d 825 ( 1994 )

Reed Waldron v. Sl Industries, Inc. Sl-Waber, Inc. , 56 F.3d 491 ( 1995 )

Johnetta Nelson v. Upsala College Robert E. Karsten George ... , 51 F.3d 383 ( 1995 )

Francis J. Kelly v. Drexel University , 94 F.3d 102 ( 1996 )

federation-of-african-american-contractors-rondeau-bay-construction-company , 96 F.3d 1204 ( 1996 )

54-fair-emplpraccas-184-52-empl-prac-dec-p-39635-5 , 895 F.2d 1469 ( 1990 )

Luis A. Fuentes v. Steven P. Perskie, Chairman of the New ... , 32 F.3d 759 ( 1994 )

Lathan Dennis v. County of Fairfax , 55 F.3d 151 ( 1995 )

76 Fair empl.prac.cas. (Bna) 1083, 73 Empl. Prac. Dec. P 45,... , 142 F.3d 639 ( 1998 )

Stacy L. Deane v. Pocono Medical Center , 142 F.3d 138 ( 1998 )

Barbara R. Sheridan v. E.I. Dupont De Nemours and Company, ... , 100 F.3d 1061 ( 1996 )

78-fair-emplpraccas-bna-956-74-empl-prac-dec-p-45616-22-employee , 160 F.3d 971 ( 1998 )

Christine Diienno and David Diienno v. Goodwill Industries ... , 162 F.3d 235 ( 1998 )

Albert L. Lawrence v. National Westminster Bank New Jersey, ... , 98 F.3d 61 ( 1996 )

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